LANCE M. AFRICK, District Judge.
Before the Court is a motion
On July 4, 2014, Hayes "was walking along the sidewalk in the 1200 block of Girod Street close to Loyola Avenue adjacent to the United State[s] Postal Service, Main Post Office in the City of New Orleans."
After this trip-and-fall incident, Hayes "filed claims for personal injury" with both the U.S. Postal Service and the City.
When explaining its effort to notify the abutting property's owner of the issue with the sidewalk, the City referenced the Charter of the City of New Orleans ("City Charter").
According to Hayes, the information provided to her by the City in the letter led her to believe that the City was not liable for her injury, but rather "that the only party liable for the sidewalk adjacent to the property in the 1200 block of Girod Street where [she] fell was the United States of America."
After the United States denied her administrative claim,
The City now moves to dismiss Hayes' one and only claim against it—a negligence claim arising under Louisiana law—on the ground of prescription.
Under Rule 12(b)(6) of the Federal Rules of Civil Procedure, a district court may dismiss a complaint, or any part of it, where a plaintiff has not set forth wellpleaded factual allegations that would entitle him to relief. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007); Cuvillier v. Taylor, 503 F.3d 397, 401 (5th Cir. 2007). A plaintiff's factual allegations must "raise a right to relief above the speculative level." Twombly, 550 U.S. at 555. In other words, a complaint "must contain sufficient factual matter, accepted as true, to `state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570)).
A facially plausible claim is one where "the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. If the well-pleaded factual allegations "do not permit the court to infer more than the mere possibility of misconduct," then "the complaint has alleged—but it has not `show[n]'—`that the pleader is entitled to relief.'" Id. at 679 (quoting Fed. R. Civ. P. 8(a)(2)) (alteration in original).
On a Rule 12(b)(6) motion to dismiss, a court limits its review "to the complaint, any documents attached to the complaint, and any documents attached to the motion to dismiss that are central to the claim and referenced by the complaint." Lone Star Fund V (U.S.), L.P. v. Barclays Bank PLC, 594 F.3d 383, 387 (5th Cir. 2010); see also Spivey v. Robertson, 197 F.3d 772, 774 (5th Cir. 1999). In assessing the complaint, the Court must accept all well-pleaded factual allegations as true and liberally construe all such allegations in the light most favorable to the plaintiff. Spivey, 197 F.3d at 774; Lowrey v. Tex. A&M Univ. Sys., 117 F.3d 242, 247 (5th Cir. 1997).
Where "the complaint on its face show[s] a bar to relief," then dismissal is the appropriate course. Cutrer v. McMillan, 308 Fed. App'x. 819, 820 (5th Cir. 2009) (internal quotation marks omitted). For example, "[a] statute of limitations may support dismissal under Rule 12(b)(6) where it is evident from the plaintiff's pleadings that the action is barred and the pleadings fail to raise some basis for tolling or the like." Jones v. Alcoa, Inc., 339 F.3d 359, 366 (5th Cir. 2003); see Anderson v. City of New Orleans, No. 03-3010, 2004 WL 1396325, at *3 (E.D. La. June 18, 2004) (Duval, J.) ("A complaint is subject to dismissal for failure to state a claim upon which relief can be granted if the prescriptive period has run.").
When a federal court exercises either diversity or supplemental jurisdiction to adjudicate state law claims, state substantive law and federal procedural law apply to those claims. See Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78 (1938). A state's substantive law includes prescriptive statutes and their exceptions. See Beavers v. Metro. Life Ins. Co., 566 F.3d 436, 439 (5th Cir. 2009) (citing Guaranty Trust Co. v. York, 326 U.S. 99, 111-12 (1945)).
Hayes' negligence claim against the City arises under Louisiana law. Thus, Louisiana substantive law controls the claim.
The City contends that Hayes' negligence claim against it is prescribed.
Under Louisiana law, "a negligence claim is delictual and prescribes [] one year" from the date of the injury. Copeland v. Wasserstein, Perella & Co., 278 F.3d 472, 478 (5th Cir. 2002); see also La. Civ. C. art. 3492. Courts strictly construe prescription statutes in favor of maintaining claims. Terrebonne Par. Sch. Bd. v. Columbia Gulf Transmission Co., 290 F.3d 303, 320 (5th Cir. 2002). To that end, "[t]he defendant has the initial burden of proving that a tort claim has prescribed." Id.
As the City points out, Hayes sustained her injury on July 4, 2014.
Even so, Hayes is not necessarily out of luck. "[O]nce it is shown that more than a year has elapsed between the time of the tortious conduct and the filing of a tort suit, the burden shifts to the plaintiff to prove either suspension, interruption, or some exception to prescription. . . ." Terrebonne Par. Sch. Bd. v. Mobil Oil Corp., 310 F.3d 870, 877 (5th Cir. 2002). One such exception—and the only one identified by Hayes as possibly applicable here—is the doctrine of contra non valentem.
"The doctrine of contra non valentem was created by the Louisiana courts as an exception to the general rules of prescription." Kling Realty Co. v. Chevron USA, Inc., 575 F.3d 510, 517 (5th Cir. 2009). The underlying motivation of the doctrine is fairness: it "prevents the running of liberative prescription where the cause of action is not known or reasonably knowable by the plaintiff." Cole v. Celotex Corp., 620 So.2d 1154, 1156 (La. 1993). However, the doctrine creates a small opening, not a gaping hole, and so it "only applies in `exceptional circumstances.'" Renfroe v. Louisiana ex rel. Dep't of Transp. & Dev., 809 So.2d 947, 953 (La. 2002) (quoting La. Civ. C. art. 3467). Thus, "contra non valentem does not suspend prescription when a litigant is perfectly able to bring his claim but fails or refuses to do so." Green v. Jefferson Par. Coroner Office, No. 05-1444, 2006 WL 380476, at *3 (E.D. La. Feb. 16, 2006) (Barbier, J.).
The Louisiana Supreme Court has "recognized four factual situations in which contra non valentem prevents the running of liberative prescription," namely:
Marin v. Exxon Mobil Corp., 48 So.3d 234, 245 (La. 2010); see also Rogers v. Corrosion Prod., Inc., 42 F.3d 292, 294 (5th Cir. 1995) (articulating the contra non valentem's "four distinct categories"). Hayes has made it clear that she invokes the doctrine's third situation, or category, as her basis for arguing that her claim against the City is not prescribed.
The third category of contra non valentem "encompasses the situation where the debtor himself has done some act effectually to prevent the creditor from availing himself of his cause of action." Marin, 48 So. 3d at 251. According to the Louisiana Supreme Court, "[t]his category is implicated only when (1) the defendant engages in conduct which rises to the level of concealment, misrepresentation, fraud or ill practice; (2) the defendant's actions effectually prevented the plaintiff from pursuing a cause of action; and (3) the plaintiff must have been reasonable in his or her inaction." Id. at 252 (internal citations omitted) (emphasis added); see also Prevo v. Louisiana ex rel. Dep't of Pub. Safety & Corr. Div. of Prob. & Parole, 187 So.3d 395, 399 (La. 2015) (noting that these three elements "must be established in order for the third category of contra non valentem to apply").
Hayes asserts in her amended complaint that, at the time that she received the City's December 30, 2014 letter, she "was pro se and detrimentally relied on the designation by the City of New Orleans that the only party liable for the sidewalk adjacent to the property in the 1200 block of Girod Street where the plaintiff fell was the United States of America."
However, detrimental reliance is not the standard governing the applicability of contra non valentem's third category. Rather, as the Louisiana Supreme Court has made clear as crystal, Hayes must offer factual allegations that, if proven true, could establish that the City "willfully concealed information from her or made intentional misrepresentations." Id.
That is not all. Hayes must also allege facts showing that the City's concealment or misrepresentation "prevented her from pursuing her cause of action." Id. Finally, she must demonstrate that her "inaction was reasonable under the fact[s]," with her reasonableness "considered in light of [] her education, intelligence and the nature of the [City's] conduct." Id. at 400. If—and only if— Hayes satisfactorily pleads all three of these elements may she then overcome the City's motion to dismiss.
Accepting the factual allegations in the complaint as true and construing them in the light most favorable to Hayes, the Court concludes that—at a minimum—Hayes has not met her burden to adequately plead the first and second elements of the third category of contra non valentem.
To successfully plead the first element—that "the defendant engages in conduct which rises to the level of concealment, misrepresentation, fraud or ill practice," Marin, 48 So. 3d at 252—a plaintiff in federal court must satisfy the heightened pleading requirements of Rule 9(b) of the Federal Rules of Civil Procedure. See, e.g., Green, 2006 WL 380476, at *3 (applying Rule 9(b) to fraud allegations offered to support the application of contra non valentem's third category); Martin v. Tesoro Corp., No. 11-1413, 2012 WL 1866841, at *4 (W.D. La. May 21, 2012) (Minaldi, J.) (same).
In this case, Hayes appears to not even be certain that the December 30, 2014 letter contains misstatements.
With respect to the second element—"the defendant's actions effectually prevented the plaintiff from pursuing a cause of action," Marin, 48 So. 3d at 252— Hayes does not allege facts that show that any misstatement by the City prevented her from pursuing her cause of action. See Gover v. Bridges, 497 So.2d 1364, 1369 (La. 1986) ("The letter does contain misstatements of fact concerning what occurred during decedent's hospitalization. The issue is, however, whether defendant's statements in this letter prevented plaintiffs from availing themselves of their cause of action."). For example, Hayes does not allege that the City threatened to retaliate against her if she pursued her claim. Compare Prevo, 187 So. 3d at 399-400 ("Most importantly, there is no evidence that Officer Phillips threatened plaintiff with consequences if she pursued her legal remedies to determine whether she was in fact required to register [as a sex offender]."), with Nathan v. Carter, 372 So.2d 560, 563 (La. 1979) ("As alleged by plaintiffs, defendants threatened Mrs. Nathan with termination of her compensation benefits if she ever contacted an attorney."). Nor does Hayes allege that the City somehow precluded her from researching the applicable law herself or from obtaining a second opinion from a legal professional. See Marin, 48 So. 3d at 252 ("While Exxon misled plaintiffs by not disclosing the extent of the contamination when they learned of it, they certainly did nothing to prevent plaintiffs from investigating the cause of the sugarcane loss for themselves.").
Instead, Hayes' argument is that the City's letter "served to lull" her into inaction—in other words, that the letter convinced her not to further investigate the City's potential liability for her injuries.
Hayes' negligence claim against the City is prescribed. Accordingly,
